In recent years, as China’s legislature has placed the amendment of the Criminal Procedure Law on its legislative plan, more and more legal scholars are paying attention to the problem. Legal academics have produced a series of theses and books, and qualified scholars have even organized experts’ drafts of the Criminal Procedure Law, offering comprehensive and systematic theoretical works on how to revise the law. I participated in scholarly activities organized by the Criminal Affairs Committee of the All China Lawyers Federation, and drafted the first lawyers’ edition of the revised Criminal Procedure Law. Thus, the next revision of the Criminal Procedure Law will not be the product of legal research conducted solely by the legislative department, but will for the first time be influenced by the collective research of legal scholars.

Generally speaking, the amendment of the Criminal Procedure Law involves changing the regulations of the criminal process, and includes adding, deleting, and changing various provisions. Among the possible changes include adjusting the powers of the public security bureau, the procuratorate, and the courts; expanding the procedural rights of suspects, defendants and defense lawyers; and establishing a new procedural system. What are the basic problems confronting the implementation of China’s criminal procedure? Each legal scholar could answer this question in his own way or give his own response: the defense rights of suspects and defendants must be expanded; the illegal extraction of evidence by investigating personnel (i.e., the public security bureau) must be deterred; the problem of witnesses not appearing at trial must be solved; the scope and application of bail must be expanded; indefinite detention must be restricted; the admissibility of various types of evidence must be given even clearer instructions. If we look beyond the “perfection of criminal process on paper” to examine the implementation of the criminal process, the above problems are extremely important, but by no means fundamental. The fundamental problem facing the implementation of China’s criminal procedure is neither limitations on the defendant’s procedural rights, nor the reallocation of power among the public security bureau, procuratorate, and courts. Rather, the fundamental problem is the malfunctioning of the criminal process. The “malfunctioning of the criminal process” means that the legal procedures established by the legislature are evaded or set aside in actual practice, such that the written regulations of the Criminal Procedure Law are, to varying degrees, empty formulations. We often say that “court trials have been reduced to formalism,” but in fact the various regulations on court trials contained in the Criminal Procedure Law have been set aside. For instance, the generally recognized rule of “one final appeal” (that a defendant may appeal his conviction once, and that the appeal is final) has been largely emptied of content. Likewise, the notion that a collegiate panel, once formed, will not reconvene, has not been implemented in actual practice. Similar examples of failure to implement abound: the transformation of bail into a substantive punishment, the acceleration of arrest into a conviction, the hollowing out of a criminal defendant’s trial rights, the importance of the dossier in criminal trials, courts’ refusing to acquit defendants even without sufficient evidence, and so on.

To be sure, the malfunctioning of the criminal process refers primarily to the fact that there is no way to effectively implement the procedures legally prescribed by the legislature. But it is not the case that the three judicial organs1 simply do not follow procedural norms during the course of the criminal process. Instead, what they actually implement are “latent regulations” or “hidden systems” that have not yet been formally recognized in law. These regulations or systems are formed when the three judicial organs handle cases and devise convenient ways to dispose of them. Over time, they gradually gain wide acceptance in the criminal process. They are norms that arise spontaneously in the practice of criminal process. Though frequently criticized by academics as inappropriate, these latent regulations and hidden systems have a great deal of vitality, and have largely replaced the authoritative status of formal legal procedures.

But the public security bureau and procuratorate commonly use it to deal with minor criminal cases, or in cases where the evidence is weak, transforming bail into a substantive punishment. We cannot merely evaluate the theoretical justifications for the avoidance of formal legal procedures, or the abundance of “latent regulations.” Such an evaluation is of course necessary, but ultimately insufficient. We must instead conduct a more penetrating investigation of the malfunctions of China’s criminal process using the techniques of social science. On the one hand, we must earnestly research the primary manifestations and categories of procedural malfunctions, and produce theoretical models to the greatest extent possible. On the other hand, we must face the malfunctions themselves, draw on a series of changes from outside areas, and produce credible interpretations of the causes of these flaws.

This essay proposes five sources of China’s malfunctioning criminal process, based on a great deal of factual and empirical analysis. I call them the “5 great precepts of the malfunctions of the criminal process.” First, the Criminal Procedure Law has not established a mechanism to implement procedures, which runs the risk of avoiding or shelving criminal procedures. Second, implementation costs for several of the procedures designed by the legislature were too high, lowering the efficiency of procedures, and making them difficult for the judicial organs to tolerate. The organs then shied away from applying these procedures. Third, due to the monitoring and evaluating of courts, even if decision-makers strictly followed procedure, they would not be rewarded, and in fact could be punished for doing so. This led to the avoidance of certain procedures. Fourth, the legislature’s introduction of certain legal procedures from the West stoked heated conflict with local legal traditions; these procedures posed challenges to criminal policy, which led judicial personnel to abandon the formal procedures altogether. Fifth, certain procedures imported from the West have no specific protections in the judicial system. Given the backward state of judicial reform, such “avant-garde” criminal procedures are hard to implement.

Of course, in resolving these basic problems, we will confront many serious difficulties. This book aims to reveal the existence of these problems as well as their root causes, to advance a general understanding based on this analytical foundation, and then to put forth common interpretations of the sources of these problems. As for final solutions to these problems, some will require enormous reforms to the national judicial system, some will await the end of social transition, while still others will need a change in social conditions. But if we do not attend to the root causes of these problems, any thoughts or actions intended to advance reform of the criminal procedure system will be blind or risky.